Snowden NSA-China Hacking Claims Complicate Extradition

On June 9, a 29-year-old Booz Allen computer technician, Edward Snowden, revealed himself to be the source of news stories showing the extent of phone and Internet eavesdropping by the National Security Agency. Source: The Guardian via Getty Images

June 23 (Bloomberg) -- Edward Snowden, who faces
extradition from Hong Kong on espionage charges, said the U.S.
National Security Agency hacked Chinese mobile-phone text
messages, the South China Morning Post reported, complicating
the Americans’ bid to take him into custody.

Snowden said private text messages of millions of Chinese
mobile company subscribers have been intercepted by the NSA, the
Post reported today, citing data provided by Snowden in a June
12 interview. The agency also attacked Tsinghua University’s
server and accessed computers at the Hong Kong headquarters of
Pacnet Ltd., which owns one of the most extensive fiber-optic
submarine cable networks in the region, the Post cited Snowden
as saying.

Hong Kong authorities were asked to detain Snowden, charged
with espionage for exposing a secret government electronic-surveillance program, while the extradition request is being
finalized, according to two U.S. officials familiar with the
matter. The latest hacking allegations could strain relations
with China after President Barack Obama pressed Chinese
President Xi Jinping this month on alleged Chinese cyberattacks
on U.S. companies.

“The chances that Beijing will ask the Hong Kong
government not to cooperate with the U.S. are quite high,”
Willy Wo-Lap Lam, a professor at the Chinese University of Hong
Kong who specializes in Chinese politics, said in a phone
interview today. “Irrespective of whether Mr. Snowden will talk
directly to the Chinese authorities, he has provided a service
to the Chinese government by exposing hacking activities of the
U.S. government.”

Chinese Sovereignty

China, which resumed sovereignty over Hong Kong in 1997,
can intervene in extraditions from the city if it relates to
China’s defense or foreign affairs. A Chinese foreign ministry
spokeswoman said June 17 that the U.S. should explain the
surveillance program revealed by Snowden. Hong Kong is a
semiautonomous special administrative region of China.

The request for a “provisional arrest” warrant for
Snowden came as U.S. officials and their Hong Kong counterparts
continued regular contact -- something that began as prosecutors
were working to draft the complaint, one of the U.S. officials
said. To have him detained, the State Department will have to
make a surrender request under a 1996 treaty with Hong Kong. The
charges against Snowden, a former Booz Allen Hamilton Holding
Corp. employee who worked with the NSA, include theft of
government property.

‘Political Character’

The charges, filed June 14 in Virginia federal court and
unsealed June 21 in a cover sheet of the complaint released by
the Justice Department, aren’t necessarily of the “political
character” for which Hong Kong law prevents extradition,
according to Simon Young, director of the Center for Comparative
and Public Law at the University of Hong Kong.

More important “will be all the surrounding circumstances
including the motivation for the prosecution, the unfairness of
his trial at home, and his likely treatment in custody,” Young
said in an e-mail response to questions yesterday.

The full complaint wasn’t available on the U.S. court
docket. Snowden faces as many as 10 years in prison on the theft
count and 10 years on each of two espionage charges. The State
Department referred all questions on Snowden to the Justice
Department.

Nanda Chitre, a Justice Department spokeswoman, declined to
comment on whether the U.S. had asked for Snowden’s detention.

U.S. investigators are probing how Snowden copied highly
classified materials and disseminated them to two news outlets.
The documents disclosed the NSA’s operation to obtain records of
phone calls by Americans and to spy on Internet communications.

Local Law

Hong Kong Police Commissioner Tsang Wai-hung declined to
comment on Snowden’s case, according to comments broadcast on
local television yesterday. There was no immediate response to
an e-mail to the office of Hong Kong’s Chief Executive Leung
Chun-ying.

Leung refused to comment on whether the U.S. had approached
Chinese authorities about extradition or other assistance during
a June 12 interview with Bloomberg Television in New York.

Hong Kong handles all extradition requests according to its
laws and won’t allow unlawful or unfair treatment, Secretary for
Justice Rimsky Yuen told reporters on June 21.

Under Hong Kong law, Leung decides whether to act on a
surrender request. If he does, a magistrate could then issue a
warrant for Snowden’s arrest, according to Young.

Fight Plan

Once Snowden was in custody, a magistrate would weigh the
evidence in the U.S. case. The magistrate’s decision can be
appealed through three separate courts. Leung would then have to
decide whether to sign a surrender order allowing Snowden to be
extradited, Young said.

Snowden, who turned 30 on June 21, said in an interview
published June 12 in Hong Kong’s South China Morning Post that
he hasn’t committed any crime and plans to fight the U.S.
government in the Hong Kong courts.

In a June 9 video interview, Snowden took responsibility
for releasing the classified documents, telling the Guardian
newspaper he did it to alert the American public to the scope of
the surveillance and to protect “basic liberties.”

Avoiding Prosecution

Snowden fled to Hong Kong May 20 before revealing himself
as the source of the leak. While in the city, Snowden added to
the disclosures he made to the Washington Post and U.K.-based
Guardian, providing information that the U.S. intercepted secret
communications by then-Russian President Dmitry Medvedev when he
attended a Group of 20 Summit in London in 2009 and monitored
the phone calls and computers of other foreign leaders at the
meeting.

The Guardian on June 21 reported Snowden showed documents
disclosing that the British spy agency GCHQ was tapping a global
network of phone and internet cables and sharing the information
with the NSA.

Snowden’s best option for avoiding prosecution is finding a
country that refuses to extradite him, according to Mark Zaid, a
national security lawyer in Washington. If brought back to the
U.S., Snowden should try to negotiate a plea rather than take
his chances with a trial, he said.

“He has erased any meaningful legal defense he could have
by his own admissions,” Zaid said in a phone interview. “He
freely admitted he’s the one who did it.”

WikiLeaks, an anti-secrecy group that publishes government
documents on its website, said it has arranged for an airplane
to be on standby to take Snowden to Iceland where he could seek
asylum.

Political Crimes

Kristin Hrafnsson, a WikiLeaks representative, met with an
Icelandic Interior Ministry official regarding Snowden and was
briefed on “the legislative arrangements regarding asylum
seekers and the rules that are in force,” Johannes Tomasson, a
ministry spokesman, said by e-mail on June 21. The government
hasn’t received any formal application regarding Snowden, he
said. Under Hong Kong law, extradition is barred for political
crimes and a similar political-crimes provision in the U.S.
extradition treaty with Sweden has posed obstacles to trying to
arrest accused spies, most recently Marta Rita Velazquez, a
former State Department lawyer charged with recruiting and
inserting a spy for Cuba into the Defense Intelligence Agency 30
years ago.

U.S. prosecutors unsealed a nine-year-old indictment
against Velazquez in April after alerting Swedish officials to
the charges in 2011.

Not Detained

Snowden has not been detained or put under police
protection and is “in a safe place” in Hong Kong, The South
China Morning Post reported today, without saying where it got
the information.

Snowden has been provided with a safe house and protection
by anti-terrorism police in Hong Kong, local newspaper Apple
Daily reported yesterday, citing an unidentified person with the
police force.

Hong Kong’s government will handle the case strictly in
accordance with the city’s law and procedures, according to an
e-mail from the duty officer of the police public relations
branch yesterday.

Five calls to the ministry’s spokesman’s office yesterday
weren’t answered.

One of the documents Snowden allegedly gave the Guardian
was a copy of an April 25 order from the special court set up
under the Foreign Intelligence Surveillance Act. It required
Verizon Communications Inc. to provide the NSA with data on all
its customers’ telephone use.

Ethics Code

The Washington Post and the Guardian, citing other
classified documents, reported that the Federal Bureau of
Investigation and the NSA under the Prism program had tapped
into the central servers of nine U.S. Internet companies,
extracting audio and video chats, photographs, e-mails,
documents and connection logs.

Unlike the leak case against Thomas Drake, a senior NSA
employee prosecuted for allegedly sharing secret documents with
the Baltimore Sun -- a case that collapsed when it turned out
the documents in question weren’t properly classified -- Snowden
probably has no opening for a defense, Zaid said.

Defense contractor Booz Allen Hamilton, based in McLean,
Virginia, confirmed Snowden was employed at the company for less
than three months at a salary of $122,000, and was based in
Hawaii. The company said in a statement that it fired him on
June 10 for violations of its code of ethics.

Espionage Act

Six Americans previously have been charged under the
Espionage Act of 1917 during President Barack Obama’s
administration, twice as many as in the previous 90 years. All
were accused of leaking secrets to journalists in violation of a
provision of the law that prohibits disclosure of national
defense information to anyone not authorized to receive it.

Before Obama took office, the Espionage Act, signed by
President Woodrow Wilson, had been primarily employed against
some of the most damaging double agents in U.S. history. They
include Aldrich Ames, a Central Intelligence Agency official
convicted in 1994 of spying for Russia, and Robert Hanssen, a
former FBI agent convicted in 2001 of similar offenses.

The case is U.S. v Snowden, 13-cr-265, U.S. District Court,
Eastern District of Virginia (Alexandria).